Austin D. Birdow v. Mark Mery, DDS, et al.

Opinion

Southern District of Texas ENTERED June 24, 2026 “SOUTHERN DISTRICT OF TEXAS. Ratan Ochsner, le CORPUS CHRISTI DIVISION

AUSTIN D. BIRDOW, § Plaintiff, V. CIVIL ACTION NO. 2:26-CV-00047 MARK MERY, DDS, ef al, Defendants. ORDER ADOPTING MEMORANDUM & RECOMMENDATION Before the Court is Magistrate Judge Jason Libby’s Memorandum and Recommendation (“M&R”). (D.E. 10). The M&R recommends that the Court dismiss without prejudice Plaintiff's claims for money damages against Defendants in their official capacities and dismiss with prejudice Plaintiffs claims against Defendants in their individual capacities. Jd. at 1. The M&R further recommends that dismissal of this case count as a strike for purposes of 28 § 1915(g). Ud. at 1-2. Plaintiff filed objections to the M&R on May 12, 2026. (D.E. 15). When a party objects to the findings and recommendations of a magistrate judge, the district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). A party must point out with particularity any alleged errors in the magistrate judge’s analysis. Pelko v. Perales, No. 23-CV-00339, 2024 WL 1972896, at *1 (S.D. Tex. May 3, 2024) (Ramos, J.). Objections that merely re-urge arguments contained in the original briefing are not proper and will not be considered. Edmond v. Collins, 8 F.3d 290, 293 n.7 (Sth Cir. 1993). Moreover, “[f]rivolous, conclusive or general objections need

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not be considered by the district court.” Battle v. U.S. Parole Comm’n, 842 F.2d 419, 421 (Sth Cir. 1987) (citation and internal quotation marks omitted). As to any portion for which no objection is filed, a district court reviews for clearly erroneous factual findings and conclusions of law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989) (per curiam). Furthermore, having previously authorized district courts to expeditiously adopt a magistrate judge’s recommendation, McGill v. Goff, 17 F.3d 729, 731-32 (5th Cir. 1994) (permitting a district court to adopt a magistrate’s recommendation one day after receiving it and before objections were filed), the Fifth Circuit has also authorized district courts to adopt a magistrate judge’s recommendation without providing detailed analysis. See Habets v. Waste Mgmt., Inc., 363 F.3d 378, 382 (Sth Cir. 2004) (affirming a district court’s two-sentence order adopting a magistrate’s recommendation for summary judgment).! After considering Plaintiff's objections and reviewing the M&R de novo, the Court OVERRULES Plaintiff's objections and ADOPTS the findings and conclusions of the M&R. (D.E. 10). Accordingly, the Court ORDERS the following: 1. Plaintiff's claims for money damages against Defendants in their official capacity are DISMISSED without prejudice as barred by the Eleventh Amendment. 2. Plaintiff's claims against Defendants in their individual capacity are DISMISSED with prejudice for failure to state a claim for relief.

' Specifically, the Fifth Circuit stated that “because the magistrate here made only legal findings on a summary judgment motion, the district court was permitted to issue an abbreviated order adopting [the recommendation].” Habets, 363 F.3d at 382. The Court finds that the principles animating the Fifth Circuit’s decision apply with equal force here: (1) “the record was available to the district court a full 20 days before the court issued its order”; (2) “the magistrate here made no involved findings of fact . . .”; (3) “the magistrate here provided a thorough analysis to support its recommendation”; and (4) “the district cout had a complete record of the magistrate’s proceedings.” See id. (citations omitted).

3. Plaintiff will not be granted leave to amend as he was given an opportunity to fully explain his claims at the Spears hearing, see March 25, 2026 Minute Entry, and further amendment would be futile. 4. A “strike” is IMPOSED under 28 U.S.C. § 1915(g). The Clerk of Court SHALL send notice of this dismissal to the Manager of the Three Strikes List for the Southern District of Texas at Three_Strikes@txs.uscourts.gov. The Court will enter a final judgment separately. oO / | I SO ORDERED. \ | | { I /{ □□ UW DAVID MORALES UNITED STATES DISTRICT JUDGE

Signed: Corpus Christi, Texas June 2475-2026

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